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Abstract: Transcript of the Reasons for Sentence
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R. v. Caesar, 2013 NWTSC 88 S-1-CR-2011-000054 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - JAMES CAESAR __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice K. Shaner, sitting in Yellowknife, in the Northwest Territories, on the 28th day of October, A.D. 2013. __________________________________________________________ APPEARANCES: Mr. A. Godfrey: Counsel for the Crown Mr. M. Martin: Counsel for the Accused (Charges under s. 149 and 246.1 Criminal Code of Canada) BAN ON PUBLICATION OF THE COMPLAINANT/WITNESS PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE Official Court Reporters 1 THE COURT: Well, I have had an 2 opportunity, Counsel, to consider your 3 submissions, and I did have an opportunity to 4 review the cases that you provided me this 5 morning as well as those which you filed earlier 6 last week, Mr. Martin, and so I am now in a 7 position to impose sentence on Mr. Caesar who was 8 convicted by a jury on September 10th, 2013, of 9 one count of indecent assault and one count of 10 sexual assault following a jury trial that was 11 held in Norman Wells. 12 The victim described the two events that 13 resulted in the two charges on the Indictment 14 when she gave her testimony. 15 She moved with her mother to Fort Good Hope 16 in 1980. They lived with her grandmother in a 17 small, two-bedroom house. It had no running 18 water and no electricity. Mr. Caesar, who is the 19 victim's uncle, lived there as well. The 20 quarters were described as being very cramped and 21 the victim typically slept on a foamy on the 22 floor of the room that she shared with her mother 23 and grandmother. Mr. Caesar had the other 24 bedroom, and that was where the honey bucket was 25 located. The victim testified that due in large 26 part to the cramped quarters, she slept where she 27 could. Official Court Reporters 1 1 On the night that the first assault 2 occurred, she said she had fallen asleep in 3 Mr. Caesar's room. She testified that she woke 4 up because Mr. Caesar had taken her pants down 5 and lifted her off of the bed. He sat her on top 6 of him on the honey bucket. She said his pants 7 were down and she was not wearing any underwear 8 and he was rubbing his penis against her. There 9 were no lights in the house, but she saw him as 10 he lifted her off the bed, and she said she could 11 smell alcohol on him. This lasted a few minutes 12 after which he nudged her to get off of him. She 13 laid down on the bed on her stomach, not knowing 14 what to do. Mr. Caesar left. 15 The incident forming the second charge on 16 the Indictment occurred when the victim was 12 or 17 13 years old. Again, she was in Fort Good Hope. 18 She said everyone in the house where she normally 19 stayed was drinking and they had barred the door. 20 She was locked out, it was cold, and she needed a 21 place to stay. It was for that reason that she 22 went to Mr. Caesar's home. He allowed her to 23 come in, and eventually they both went to bed, 24 both of them fully dressed, and although they 25 were sleeping on the same bed (there was only one 26 in the house), they were under separate blankets. 27 Subsequently, the victim woke up. She found her Official Court Reporters 2 1 pants were off and so were Mr. Caesar's. 2 Mr. Caesar was on top of her, trying to put his 3 penis inside of her. She told him to get off and 4 she put her pants on and she left. She walked 5 around for a while, trying to find someone who 6 would take her in for the night and finally an 7 aunt let her in. 8 Mr. Caesar is a long-time resident of Fort 9 Good Hope. He is an aboriginal man, and like 10 many aboriginal people in the Northwest 11 Territories, he attended residential school, and 12 through his counsel this morning, the Court 13 learned that like so many others, he was sexually 14 abused while he was there. Nevertheless, he 15 managed to lead a largely successful and 16 accomplished professional life as reflected in 17 the two letters of support that this counsel 18 tendered here this morning. 19 The Criminal Code of Canada sets out the 20 principles and objectives of sentencing that 21 provide a framework for judges in imposing a 22 sentence that is just and appropriate. 23 Sentencing is a highly individualized 24 process. The objectives of sentencing are set 25 out in Section 718 of the Criminal Code. They 26 are: Denunciation of unlawful conduct, which is 27 an expression of society's abhorrence for a Official Court Reporters 3 1 particular act; deterrence, which is aimed both 2 at society in general, which is general 3 deterrence, and deterrence specific to the 4 offender; separating offenders from society where 5 that is necessary; rehabilitation; reparation; 6 and promoting a sense of responsibility in 7 offenders and an acknowledgment of the harm that 8 is done to the victim and to the community at 9 large. 10 The emphasis placed on any one of these 11 factors of course depends on what the offence is, 12 the circumstances under which it was committed, 13 and the circumstances of the offender. Where an 14 offence involves abuse of a person under 18 years 15 of age, as is the case here, the Criminal Code 16 requires the sentencing judge to give primary 17 consideration to the objectives of denunciation 18 and deterrence. 19 Courts are also guided by a number of 20 principles in applying these objectives that I 21 just talked about, and the most important of 22 these is proportionality. This takes into 23 account the moral blameworthiness of the 24 offender, and it is stated in the Criminal Code 25 as follows: 26 A sentence must be proportionate to the gravity of the offence and 27 the degree of responsibility of the offender. Official Court Reporters 4 1 2 In other words, the punishment has to fit the 3 crime. 4 Judges also have to consider the aggravating 5 and mitigating circumstance and reduce or 6 increase a sentence accordingly. 7 Judges are guided by the principles of 8 restraint and similarity of sentence. Similarity 9 of sentence means simply that there should be 10 similar treatment for like offences and 11 offenders, and the principle of restraint means 12 that imprisonment should be a measure of last 13 resort. That requires consideration of all 14 available sanctions other than imprisonment that 15 are reasonable in the circumstances, with 16 particular attention to the circumstances of 17 aboriginal offenders, and the importance of that 18 principle was recently reaffirmed by the Supreme 19 Court of Canada in the R. v. Ipeelee. 20 There are a number of gravely aggravating 21 factors in this case. Mr. Caesar is the victim's 22 uncle. He was an adult, she was a child. In 23 both cases, she was asleep when the assaults 24 began. In the second case, she was extremely 25 vulnerable. She sought refuge from the cold when 26 her mother and grandmother locked her out of a 27 drinking party. She had nowhere to go and Official Court Reporters 5 1 Mr. Caesar took her in, but instead of protecting 2 and sheltering this young girl, he seized the 3 opportunity to take full advantage of her 4 vulnerability. 5 Mr. Caesar has one criminal conviction which 6 arose after these charges were laid for impaired 7 driving. That record has no impact on the 8 sentencing in this case, so it is not an 9 aggravating factor. 10 There really are no mitigating factors. 11 There was no guilty plea, there was no expression 12 of remorse, and while I emphasize that these are 13 not aggravating, their absence simply means that 14 there is nothing mitigating. 15 The Crown seeks a custodial sentence of two 16 to two-and-a-half years' incarceration. It is 17 the Crown's position that a custodial sentence in 18 this range is necessary to achieve the objectives 19 of sentencing, particularly denunciation and 20 deterrence, which, as I noted earlier, have to be 21 given primary consideration. The defence submits 22 that I should impose a conditional sentence of 23 twelve months or, alternatively, a period of 24 incarceration of eight to ten months. 25 Up until recently, a conditional sentence, 26 which is acknowledged to be a more lenient 27 sentence than incarceration, would have been Official Court Reporters 6 1 available, and so in accordance with Section 2 11(i) of the Charter, because of the time that 3 these offences were committed, this is something 4 that is available to Mr. Caesar for my 5 consideration. In my view, however, it is not 6 appropriate that there be a conditional sentence 7 in this case. In particular, I am wholly 8 unconvinced that a conditional sentence would 9 send the right message about denunciation and 10 deterrence to either Mr. Caesar or the community 11 at large. It would also fail to recognize the 12 very high degree of moral blameworthiness borne 13 by Mr. Caesar and the impact that his actions 14 have had on the victim. 15 Children trust adults. They have to be able 16 to do that. They are children and with that 17 comes an inherent vulnerability. They have to be 18 able to rely on adults and on their family 19 members to help and protect them. They have the 20 right to go to sleep at night and not fear 21 falling prey to the perversions of older, 22 stronger people. If they need help because their 23 own parents have failed them, they should not 24 have to choose between freezing and bearing the 25 risk of being sexually assaulted. 26 Sexual assault is all too common in the 27 Northwest Territories and, tragically, sexual Official Court Reporters 7 1 crimes against children are not uncommon. They 2 are so serious and it is absolutely imperative 3 that the Court send a message that it is a crime 4 and it is a serious one with real consequences. 5 In her Victim Impact Statement, Mr. Caesar's 6 niece describes her loss of innocence as well as 7 the price she has paid for coming forward. She 8 does not feel she can return to her home 9 community of Fort Good Hope, and her 10 relationships with other family members have been 11 negatively affected. Mr. Caesar, in the 12 meantime, has been able to live his life until 13 now with success and without bearing that kind of 14 burden. 15 Crown counsel submitted two cases, both of 16 which address the appropriate length of sentence 17 as well as sentencing principles and objectives 18 involving child victims. These are R. v. K.R., 19 2001 Carswell NWT 14 and R. v. M.C.F., 2006 20 Carswell NWT 90, and both of these are from the 21 Supreme Court of the Northwest Territories. 22 In the K.R. case, the accused was sentenced 23 to three years' incarceration for what was 24 characterized as a major sexual assault, and in 25 M.C.F., the accused received nine months' 26 incarceration followed by twelve months of 27 probation. Now, I note that in both of these Official Court Reporters 8 1 cases, the accused had previous records for 2 similar offences, which makes them somewhat 3 distinguishable from the case at bar. 4 Defence counsel also submitted a number of 5 cases in support of a more lenient jail sentence 6 than what the Crown is seeking. Many of these 7 cases, however, predate the decision in R. v. 8 Arcand from Alberta which has been applied by 9 both the Supreme Court and the Court of Appeal of 10 the Northwest Territories. 11 Although I have concluded that incarceration 12 is necessary in this case, I do not think that a 13 sentence of the length requested by the Crown is 14 necessary to achieve the goals of denunciation 15 and deterrence, and I also think that a 16 combination of a shorter period of incarceration 17 than what is sought by the Crown followed by a 18 period of probation would achieve these. 19 Moreover, I think that approach would honour the 20 reasoning in Gladue and Ipeelee. 21 The Crown has also asked that I impose a 22 firearms prohibition under Section 109 of the 23 Criminal Code, and that section provides for a 24 mandatory prohibition where a person is convicted 25 of an indictable offence in the commission of 26 which violence against a person is used, 27 threatened, or attempted, and for which the Official Court Reporters 9 1 person may be sentenced for ten years or more. 2 The question here is whether there was 3 actual threatened violence as that term is used 4 in Section 109, and I find that in this case 5 there was. In the first event, Mr. Caesar took 6 the victim out of bed and held her on his lap. 7 He restrained her. He did not slap or hit her, 8 but she could not leave. The second time, the 9 victim awoke to find her pants off and Mr. Caesar 10 attempting to put his penis in her vagina and 11 that, in my view, is violence as that term is 12 used in Section 109. 13 Mr. Caesar, can you please stand. Mr. Caesar, 14 upon being convicted of indecent assault and 15 sexual assault and upon consideration of the 16 circumstances and the nature of these offences as 17 well as your personal circumstances, I sentence 18 you as follows: For the charge of sexual 19 assault, which is Count 2 on the Indictment, you 20 are sentenced to a term of 18 months' 21 imprisonment. This will be followed by a term of 22 12 months' probation. For the charge of indecent 23 assault, which is Count 1 on the Indictment, you 24 are sentenced to a term of one-year imprisonment 25 to be served concurrently with the time served 26 for Count 2. This term will be reduced by the 27 amount of time that you spent in custody awaiting Official Court Reporters 10 1 this sentencing on a one-to-one basis, which is, 2 as of today, 49 days. 3 During your probationary period, you would 4 be subject to the following conditions: You will 5 keep the peace and be of good behaviour; you will 6 appear before the Court when required to do so by 7 the Court; you will notify the Court or your 8 probation officer in advance of any change of 9 name, address, change of employment or change of 10 occupation; you will report to a probation 11 officer within two working days of your release 12 from custody and thereafter as required by the 13 probation officer; and you will remain in the 14 Northwest Territories unless you have written 15 permission from either the Court or the probation 16 officer to leave. 17 There will also be some ancillary orders. 18 There will be an order for bodily fluids to be 19 taken from Mr. Caesar for DNA analysis and an 20 order requiring him to comply with the Sex 21 Offender Information Registration Act pursuant to 22 Section 490.012 of the Criminal Code. The 23 duration of that order will be for 20 years. 24 Finally, there will be a mandatory ten-year 25 firearms prohibition, but given that Mr. Caesar 26 hunts for sustenance, the Chief Firearms Officer 27 or Registrar, as the case may be, are both Official Court Reporters 11 1 authorized to issue an authorization to you for 2 sustenance purposes under the terms and 3 conditions deemed appropriate. 4 Given the circumstances and the fact that 5 these offences predate the recent amendments to 6 Section 737 of the Criminal Code, the victims of 7 crime surcharge in this case is waived. 8 Counsel, is there anything else? 9 MR. GODFREY: Your Honour, just in relation 10 to the probation order, I'm wondering if it would 11 be appropriate to order a no contact condition 12 with respect to the complainant. 13 THE COURT: That will be a term of your 14 probation, Mr. Caesar, that you cannot have any 15 contact with Ms. H. 16 MR. GODFREY: Thank you, Your Honour. 17 MR. MARTIN: Nothing further from defence, 18 Your Honour. 19 THE COURT: Is there anything else? 20 MR. GODFREY: I don't believe so, Your 21 Honour. Thank you. 22 THE COURT: Mr. Caesar, good luck to you. 23 Thank you. We will adjourn. 24 ................................. 25 26 27 Official Court Reporters 12 1 2 3 Certified Pursuant to Rule 723 of the Rules of Court 4 5 6 Jane Romanowich, CSR(A) 7 Court Reporter 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 13
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